
DECISION 



OF THE 



COURT OF Tli UMTiD STATES 



IN THE SUIT OF 



Jeremiah Van Rensselaer, Appellant, 



vs. 



Philip Kearney and Frederick de Peyster, 

TRUSTEES AND EXECUTORS OF JOHN WATTS, Deceased, 



On Appeal from the Circuit Court of the United States for the Suthern District 

of New-York. 



HUDSON: 

i\ DEAN CARRIQUE'S PRINT, HUDSON GAZETTE OFFICE. 



1851. 



Ih 












^^ 



No. 76.— December Term, 1850. 

Jeremiah Van Rensselaek, App't., vs. PuiLrp in fee tail, shall be deemed and adjudged to become 

Kearney and Frederick De Peyster, Trus- ' seized thereof in fee simple absolute" (3 R. o. ■!>"• 

tees and Executors of John Watts, deceased. \ Y. 1 Ed. npp. 43, 1 R. L. 1813 p. 52 ) 

r, . ,r ,. r.- ,n . .-.. IT ■• J a. . r I As we have already Stated, John, the first bom 

On Appeal from the Circuit Court ot the United Str.tes for') ^ t ■ t ■ ■ u „ 1701 nnrl 

the Southern District of New-York. son of John I, the grand son, was born 1/Ji, aim 

he died without issue in 1813, while the lite estate 

Mr. Justice NELSON delivered the opinion o{\ was runnins, his father having survived until 1828. 
the Court : \ On the bu th of John, the first born, his remam- 

This is an appeal from a decree of the circuit ^^' ^^ '''« ^'^^ ^^"=1"' '" ^^'^ ''"'' ''''^'''^ ^aI.T^ 
court of the United States for the southern district contmgent, became vested in interest, and ne s 

) thereafter seized of an estate tail m remainder, ine 
? vesting in possession, being dependant upon the 



of New York. 

John Van Rensselaer being seized in fee of a 
large tract of land in the county of Colambia, State 
ol New York, made and published his last will and 
testament on the L'5th May 1782, by which he de- 
vised the same to John I. Van Rensselaer, his grand 
son, for and during his natural life : and from and 
after his decease, to the first son of the body of the 



termination of the lite estate. 

The interest in the estate in remainder in which 
they vested immediately on hi.s birth carried with 
it a fixed right of iuture enjoyment in possession, 
the instant the lite estate terminated. 

The question up3n this branch of the case is, 



said John I, lawfully begotton and to the heirs male ; whether or not, the estate in fee tail, in remainder 
of his body : and, in default of such issue, then to ) thus acquired under the will of John Van Rensse* 
the second, third, and every other son of the said ^ laer was converted into a lee simple absolute in 
John I, successively, and, in remainder, the one , John the nrst born son of John I, by the operation 
after the other, as ihey shall be in seniority of birth, ' of the act 1786, abolishing entails. 
and the several tmd respective heirs male of the ' The act provides, that if any person shall there- 
first, second, third, and other son or sons : the eldest after " become seized in fee tail of any lands, iene- 
ofsuch sons, and the heirs male of his being always lueni.i, or hereditaments by virtue ot any devise 
preferred. \ &lc., he shall be deemed to have become seized in 

The testator died in 1783, leaving John I, the ) fee simple absolute. 
grand son,surviving, who entered into the possession \ It is admitted, that John the first born took a ves- 
and enjoyment of the estate. John I, had five > ted remainder in fee tail under the will, the instant 
children, John, the first born, whose birth was in ; he came into b"ing, and that he was seized o' ^'^ 
1791, Jeremiah, the present complainant, Cornelius ; estate in remainder in the premises in question ; but 
and Glen, and a daughter, Catharine G. ) it is insisted, that this is not the character ot the 

By an act of the legislature of the State of New ' estate described in the statute ; and which is there 
York, passed 23 February 1786, it was enacted as ) turned into a fee simple ; that in order, to bring the 
follows: " That all estates tail shall be and hereby ) case within it, the tenant in tail in remainder must 
are abolished: and, that, in all cases, where any 'J be vested in possession, as well as in interest, and 
person or persons now is, or, if the act hereinafter) wiihout which he cannot be said to be seized ot the 
mentioned and repealed (referring to an act passed ' lands, tenements, or herediiaments : and, as John 
12 July 1782) had not been passed, would now be j died during the running of the life estate, and, 
seized in fee tail of any lands tenements or heredi- > therefore, was never seized in possession, the lee 
laments, such person or persons shall be deemed to ■ simple did not vest in him, under the statute ; but 
be seized of the same in fee simple absolute: and ^ was postponed to the next tenant in tail, the sec- 
further, that, in all cases, where any person or per- > ond son, Jeremiah, who is the complainant in the 
sons would, if the said act, and this present act had N suit. 

not been passed, at any time hereatter become) We do not propose to enter into an examination 
seized in fee tail of any lands, tenements or here- ' of this question, and which involves the true con- 
ditaments, by virtue of any devise, gift, grant, or i struction of the act of 17S6 ; as that act has been 
other conveyance heretofore made, or hereafter to several times before the courts of New York, and 
be made, or by any other means whatsoever, such , its construction settled by the highest authority in 
person or persons instead of becoming seized thereof^ that Stale. (2 Denio, 1, V^anderheyden vs. Cran- 



CollJ (5 ibid. 35, Van Rensselaer vs. Poucher, 1 ' through his father Jolin 1. as one of the heirs of his 
dnmptocit 491 S. C. on appeal.) estate. 

One of the cases arose under the will before us The tract of land in question embraces between 
and involved the question as to the effect of the act thirty thre^-.and thirty tour thousand acres, and on 
upon the estate of John the first born tenant in tail, the 1 January 17D5 John I, the life tenant, sold 
the same as here. ' and conveyed the same in ffc to Daniel Tenfield 

The consiruciion of the act as given in these ca- , for the consideration of §44,550. 
ses must (brni the rule of decision upon the question \ It is more than probable, it was the opinion of 
according to the est.-iblit-hed course of proceeding in the profession in New York, at the date of this 
this court. (12 Wh. 1G7, 1G8, 6 Peters 291, 7 , conveyance that John I, the grand son, took an es- 
How. 818, 8 lb. 558, 9,) ^ tate in fee tail under the will of his grand father. 

In the case in the court of appeals in New York, within the rule in Shelley's case, which the act of 
Mr. Justice Bronson, who delivered the judgment 1786, had turned into a fee simple absolute : and 
of the court, observed, that, " it is true statute ■ that the purchase was made under the belief that 
speaks of a person seized of lands, tenements, or , he was competent to convey the fee. 
hereditaments: and, in general, seizure ol lands,- It is admitted, however, that this construction, 
meads actu.il possession of them. But taken in their which may have been given at the time, was a 
connexion, the words evidently mean, seizen of an mistaken one : and, that he took only an estate for 
estate in lauds. The legislature began by speaking life, which terminated on his death the 26Septem- 
of estates tail : tiiat was the subject in hand : those ber 1828. At that time, we have seen, he was 
estates were to be turned into estates of a different , seized of the whole estate in fee in consequence of 
tenure or quality ; und the law makers must be un- ' the death of his eldest son, the first born tenant in 
derstood as speaking of the same thing in the latter | fee tail in 1813, and which descended to his four 
|)artof the clause which ihey had mentioned in the , children, three sons and a daughter, as tenants in 
first. ' common, of whom the complainant is one, unles 

lie observes, as I read the statute the provisions , they are estopped from setting up the title by the 
is, that all estates tail shall be abolished : and deed of the 1 January 1795, to Penfield, under 
where any person now is seized of an estate in tee whom the defendants hold. 

ta:l on any lands, &,c., such person shall»be deemed > On the part of the complainant, it is insisted, that 
to be seized of the same, (to wit, an estate in the the conveyance is a deed of bareain and sale, and 
lands) in fee simple. , quit claim, without any covenants of title or war- 

He further remarks, the third section, which ranty : and, therefore, could operate to pass only the 
regulates descents, like the first, which abolishes estate for life of which the grantor was then seized, 
entails, speaks of a person seized of lands, tene- thaf it contains no appropriate words, when taken 
inents or hereditaments: and I think the word together, by force of which the subsequently ac- 
" seizen" was used in the same sense in both sec- quired title enured to the benefit of the grantee, or 
tions. One who has a vested remainder in fee ' those claining under him ; or, that can estop the 
simple expectant on the determination of a present heirs from denying that he had any greater estate 
freehold estate, has such a seizen in law, when the than the tenancy for life. And, that the deed pur- 
estate was acquired by purchase, as will constitute . ports on its face to grant and convey, simply, the 
him a s<i)7(s or stock of descent under the third right, title and interest which the grantor possessed 
section. Ami the person who has a vested re- ' in the premises at the time, and nothing more. — 
m.Tinder in fee tail, acquired in the same way, has That the only covenant is a covenant against in- 
such a seizen in law as brings his case within the cuml)rances which afford indemnity asainst any 



operation of ihe first section. His remainder in 
fee tail is turned into a remainder in fee simple. 
The first section brings the case under the influence 
of the thud. And liie estate no longer follows the 
will of the donor : but is governed by the general 
law ol descents." 

This being regarded as the true construction of 
the act of 178() ; it follows, that John, the first born 
son of John 1. took an estate in fee simple absolute 
in remaituler in the premises: and, that on his 
death in 1SJ3, it descended, according to the law 
of New York, to his father, the life tenant; and 



liens or charges upon the estate conveyed ; but 
which cannot be regarded as warranting the title : 
and, that this express covenant takes away all im- 
pled ones. 

This is the substance of the argument on the 
part of the appelant. 

By the covenant against incumbrances, the gran- 
tor for himself and his heirs, covenants and agrees 
to and with the grantee and his heirs, and assigns, 
that the tract of land conveyed, excepting parts pre- 
viously sold in fee by his ancestor John Van Rens- 
selaer, and by himself; also, lands leased to Rob- 



thc two estates being thus united in him he became ^ ert Van Rensselaer, a lot of wood land to be con- 
vested with the whole estate in fee simple absolute. ' veyed by the grantee to H. J. Van Rensselaer, a 
The complainant, therefore has failed to make ; tract lying in the city of Hudson, and a farm in the 
out any estate in the premises under the will of > possession of Mrs. Moore — with the exception of 
John Van Rensselaer. And can claim title only ' these several parcels the grantor covenants, that the 



tract conveyed is free, and clear, nnd shall be held ) enjoyment of the premises free from all incumbran- 
and enjoyed by the grautee his heirs and assigns .' ces ; and was intended as a saving from its scope 
according to the true intent and meaning of these , and obligation. 

presents freely and clearly acquitted and discharged ' There is much force, therefore, in the argument, 
of and from all incumbrances and charges other \ that this covenant from its peculiar phraseology, 
than leases heretofore given by the said grantor and \ and structure was intended as something more ihan 
his ancestors. ' a simple covenant against incumbrances and char- 

This covenant, it will bs seen, excepts out of the , g<'s upon the estate ; and that it was intended by 
indemnity, in express terms, parcels of land pre- i the parties as a covenant of the title which the deed 
vioiisly granted out of the tract, in fee simple, and purported to convey, and, if so, this, of itself, would 
the title to which was outstanding in third persons; , operate upon the estate subsequently acquired by 
and, and also, the leases which had been given in ; the grantor, so that it would, as against him and 
fee, or for the lives of the lessees, on which rents ' all persons claiming under hitn, enure to the bene- 
liad been reserved, and which leases were to be i fit of the grantee his heirs and assigns, 
transferred to the grantee as r^nts and profits be- ' But independently of this view, and of any cove- 
longing to the estate, and which he was to enjoy, v, nanis of title, in the technical sense of the term in 
The draftsman seems to have supposed, that the > the deed of 1 .January, 1795, we are of opinion, that 
outstandmg titles in fee in these Several tracts, and ' the complainant is estopped from denymg that 
also, the leases in fee, and for lives previously gran- -^ John J. Van Rensselaer, the grantor, was seized of 
ted, and above referred to, would have been em- j an estate in fee simple at the date of that deed, the 
braced within the covenant, unless expressly ex- v grounds of which opinion we will now proceed to 
cepted out of it, and that they might be regarded i state. 

an incumbrance upon the estate which the deed i' The general principle is admitted, that a grantor, 
purported to convey, and consequently a breach of i, conveying by deed ot bargain and sale, by way of 
this covenant against incumbrances. This is the |' release or quit claim of all his right and title to a 
natural, if not, the necessary implication from the ^ tract of land, if made in good faith, and without 
structure of the covenant ; for, otherwise, the ex- ', any fraudulent representations, is not responsible 
ceptions are withont meaning. ) for the goodness of the title, beyond the covenants 

And by parity of reasoning, the implication is j in his deed. (7 How. 159. 2 Sugvend. ch. 12. § 2. 
equally strong, that the covenant embraced, and p. 421. 2 Kent. C. 473. 4 ibid 471. [n] 1 Cow. 616 
wa? intended to embrace, and secure to the grantee , 9 ibid 1. 4 Wend. 622. 7. Conn. 25H. 11 Wend, 
and his heirs, the whole of the interest and estate 110. 13 ibid 78. S. C. 12 Pick. 78. 1 R. S. N. Y. 
in the tract which the deed purports to convey, sav- 739. § 143. 5. 15 Pick. 23. 14 J. R. 193) 
ing and excepting only the parcels, and portions of ? A deed of this character purports to convey, and 
the title thus enumerated and taken out of it : and, s is understood to convey, nothing more than the in- 
hence, if any outstanding title existed, not enume- terest, or estate of which the grantor is seized or 
rated, and excepted, there would be grounds for , possessed at the time ; and does not operate to pass 
alleging a breach of the coveneni, and for claiming , or bind an interest not then in existence. The 
that the grantee, his heirs or assigns were entitled bargain between the parties proceeds upon this 
to an action to recover indemnity for such diminu- \ view ; and the consideration is regulated in con- 
lion of the estate. > formity with it. If otherwise, and the vendee has 
This result would seem almost necessarily to fol- contracted for a particular estate, or for an estate 
low from the nature, and structure of the covenant, ^ in lee, he must lake the precaution to secure him- 
unless we regard it, as inserted mainly for the bene- ^ self by the proper covenants of title. 
fit of the grantor to enable him to make the excep- ^^ But this principle is applicable to a deed of bar- 
tions. For, it is but reasonable to presume, that gain and sale by release or quit claim in the strict 
the draftsman, in making the exceptions did not and proper sense of that species of conveyance. — 
stop short in the enumeration of the parts and por- \ And, therefore, if the deed bears on its face evi- 
tions ot the estate, and title intended to be saved [< dence, that the grantors intended to convey, and 
from its operation ; or that he omitted any right or , the grantee expected to become invested, with an 
interest not extended to pass by the conveyance. — estate of particular description or quality, and that 
And, hence, the reasonableness of the implication, > the bargain had proceeded upon that footing be- 
that every pan of the estate, and interest in the iween the parties then, although it may not con- 
same that the deed purported to convey was inten- ^ tain any covenants of title in the technical sense of 
ded to be embraced within the covenant not inclu- ^ the term, still, the legal operation and effect of the 
ded within the exception. s instrument will be as binding upon the grantor, 
These several rights and interests had already , and those claiming under him, in respect to the es- 
been excepted out of the granting clause in the deed i tate thus described, as it a formal covenant to that 
and hence the exception in this part of the instru- effect had been inserted ; at least, so far as to estop 
ment was not necessary for this purpose. The ex- Mhem from ever afterwards denying that lie was 
ception here related exclusively to the covenant of seized of the particular estate at the lime of the 

conveyance. 



The authorities are very full on this subject, 
fCowp. 601, Good-iiiie vs. Bailey. 2 Sim. and 
St. 524, Bcnsley vs. Burden. 5 Russell 330, S. G. 
2 B & Ad. 278, where this case is referred to 8 
Scott 210, Doe. Ex. dfm. Marchantvs. Ewingion. 
Wightwick 129, Rees vs. Lloyd. 2 Ad. & Ellis, 
278, Bowman vs. Taylor, 1 ibid. 792, Laii).«on vs. 
Tremere, 7 Conn. 214, Stone vs. Wise. 5 Binney 
231, Penrose vs. Grilliih. 3 J. Cas. 174, Denn. vs. 
Cornell. 8 Cow. 5SG. 4 EViers 1, Carver vs. 
Jackson, Ex. dem. Astors, 7 tJreenl. 96. 4 Kent 
C. 271 (n). 1 Smith's Leading Cases p. 450 note 
to the Duchess of Kingston's case.) 

In the case of Ben^ley vs. Burden, the party 
granting the estate recited that he waseniiiled to a 
remainder in fee, expectant u|)on the determination 
of the life estate ofliis father, in certain premises 
iherfin described. In point of fact he had no in- 
terest in the premises at the time: but became ves- 
ted with an estate for life in a part of them some 
two years afterwards under the will of his father 
and soon alter conveyed this interest to the defen- 
dant. 

The vice chancellor held, that the grantor hav- 
ing averred in the deed, that he was seized of a re- 
mainder in fee, expectant on the death of his father 
he was estopped from setting up, that at the time of 
the grant, he was not duly seized of the estate ac- 
cording to the averment : that the estoppel run with 
the land, and bound not only the grantor, but all 
claiming under him : and, that the defendant was, 
therefore, equally estopped from denying the title. 

There was an appeal in this case to the Lord 
Chancellor, and his decision is referred to as repor- 
ted in 5 Russell 330 ; but there is an error in the 
reference, and I have not been able to find it. 

But in Right e.x. dem. JefTerys vs. Bucknell (2 B. 
& Ad. 281) Lord Tenterden refers to the case, and 
says, that the judgment of the V. Chancellor was 
allirmed, and that the chancellor put his dedision 
on the ground, that the recital of the interest of the 
grantor in the premises, was an averment of a psr- 
licular fact by which the defendant was concluded. 

And in the case of Doe ex dem., Marchant vs. 
Ewingion, which wasan action of ejectment tore- 
cover possession of a set of chambers in Lincoln's 
Inn, it appeared, that one Boileau, having been ad- 
mitted by the Benchers of the society, the owners 
of the fee, to the chambers for lile, had granted the 
same to the lessor of the plaintifTin trust to secure 
an annuity, reciting in the deed that he was well 
entitled to an estate for life in the chambers. 

Afterwards B. by an arrantjement with the de- 
fendant surrendered to him the possession of the 
chambers, who continued to occupy them at the 
time of the commencement of the suit, which was 
brought in consequence of the annuity being in ar- 
rea r. 



the Bench for permission to surrender, first paying 
all his arrear of dues ; and the person who is to 
succeed must also present a petition to be admitted; 
and, thereupon, if consent be given, then an order 
is entered that the person admitted may have leave 
to surrender ; and, the person, who is to succeed, 
may be admitted on paying the tine and fees. — 
And, that it is in the discretion of the masters, for 
the lime beings to make such orders for the admis- 
sion in or exclusion from chambers in the Inn as 
they think fit. 

The lessor of the plaintiff sought to recover on 
the ground that Boileau was estopped from deny- 
. ing that he was seized of an estate for life in the 
chambers by the recital in his conveyance ; and, 
that the defendant coining in under him was equally 
estopped. 

Tmdall C. J., in giving judgment observed, that 
the case had very properly been argued on the 
ground of estoppel : for, if it were a question of title, 
■ the lessor of the plainiifl would clearly be out of 
court. That he must claim under the estoppel 
created by the recital in the deed of conveyance. 
He admitted that B. was bound by the recital ; and 
the defendant also, if in privity of estate : that, ac- 
cording to the old authorities, he must eiiher come 
in the per or the post, that is, he must claim t'rom 
through, or under the party. That the defendant 
did not claim under B , but under the trustees of the 
society of Lincoln's Inn, and, therefore, was not es» 
topped from denying the title. 

Coltman J. observed, that as between B. and the 
lessor of the plaintiff, the former might be estopped 
from denying that he had the estate he represented 
by his deed. But, that to enable the plaintiff to 
succeed, it was necessary for him to show that the 
defendant claimed through or under B., so that the 
estoppel should affect hiiii. 

In the case of Bowman vs. Taylor, Lord Den- 
man Ch. J. observed, that as to the doctrine laid 
down in Co. Lilt. 352, b, that a recital doth not 
conclude, because it is no direct affirmation, ihe 
authority of Lord Coke is a very great one ; but, 
siill, if a party has by his deed recited a specific 
fact though introduced by a " whereas" it seems to 
me impossible to say, that he shall not be bound by 
his own assertion so made under seal. 

And Taunton J. remarked in the same case, that 
the law of estoppel is not so unjust or absurd as 
it has been too much the custom to represent. The 
principle is, that wheie a man has entered into a 
solemn engagement by deed under his hand and 
seal as to certain facts, he shall not be permitted to 
deny any matter which he has so asserted. 

In the case of Fairbanks vs. Williamson, there 
was no covenant of title in the deed, which was in 
fee : but the grantor covenanted that neither him- 
self his heirs or assigns, would ever make any claim 



By the regulations of the society, it appeared, , to the premises. The court held, that this operated 
that, in order to surrender possession the person last as an estoppel not only upon him, but upon all 
admitted must present a petition to the Masters of claiming under him from setting up an after ac- 



tjiiired title to the land against the grantee or those 
in privily wiih him. 

In Jackson ex dem. Munroe vs. Parkhurst et al. 
(9 Wend. 209) the recovery was placed altogether 
on the ground of estoppel, the defendant holding 
Under the grantor of the deed in which the title 
was recited. And, in Right ex. d. JetTreys vs. 
Bucknell, where ihe recital in the deed was, that 
the grantor was legally or equitably entitled to an 
estate in fee in the premises, the court refused to 
bind the party coming in under him as a purchaser 
for a valuable consideration of the after acquired 
title, solely, on the ground, there was no certain 
and precise estate set forth in the recital. 

The principle deducible from these authorities 
seems to be, that whatever may be the form or na- 
ture of the conveyance used to pass real property, 
if the grantor sets forth on tlie face of the instru- 
ment by way of recital or averment, that he is 
seized or possessed of a particular estate in the 
premises, and which estate the deed purports to 
convey : or what is the same thing, if the seizen or 
possession of a particular estate is affirmed in the 
deed, either in express terms, or by necessary im- 
plication, the grantor and all persons in privily with 
him shall be estopped from ever afterwards deny- 
ing that he was so seized and possessed at the time 
he made the conveyance. The estopped works 
upon the estate and binds an alter acquired title as 
between parties and privies. 

The reason is, that the estate thus affirmed to be 
in the party, at the time of the conveyance, must 
necessarily have influenced the grantee in making 
the purchase, and hence the grantor and those in 
privity with him, in good faith and fair dealing 
should be forever thereafter precluded from gain- 
saying it. 

The doctrine is founded, when properly applied, 
upon the highest principles of morality : and recom- 
mends itself to tlie common sense, and justice of 
every one. And, although it debars the truth in 
the particular case, and, therefore, is notunfrequen- 
tly characterized as odious, and not to be favored, 
still, it should be remembered, that it debars it, on- 
ly, in the case, where its utterance would convict 
the parly of a previous falsehood — would be the de- 
nial of a previous affirmation upon the faith of 
which persons had dealt, and pledged their credit, 
or expended their money. 

It is a doctrine, therefore, when properly under- 
stood and applied, that concludus the truth in order 
to prevent fraud and falsehood: and imposes si- 
lence on a party only when, in conscience, and hon- 
esty he should not be allowed to speak. 

Now, applying this doctrine to the case in hand, , 
our next enquiry will be, whether or not, John J. 
Van Rensselaer affirmed in his deed of 1 January 
1795, to Penfield that he was seized of an estate in 
fee in the premises : and whether, the deed purports ' 
on its face to convey aa estate of that description. * 



As to the question involved in the latter brancfi 
of the enquiry, we need only refer to the words of 
the grant to determine it. The deed is all the 
right, title, and interest of the grantor in the tract 
I of land to Penneld, his heirs and assigns forever, 
terms that would have passed an estate in fee if 
John J. had been seized of it at the lime of the 
conveyance. 

The most important question arises upon the 
other branch of the enquiry. Has the grantor 
affirmed on the face of the deed that he was seized 
of this particular estate in the premises, at the time 
he mad% the grant ? 

The argument on the part of the complainant is, 
1 that, although, the granting words of the deed are 
; broad and comprehensive, such as, " have granted, 
I bargained, sold, aliened, enfeoffed, assured, released 
and confirmed, and by these presents, do grant, 
^ bargain, sell, alien, enfeoff, assure, release and 
, confirm unto the said Daniel Penfield," "and to 
' his heirs and assigns forever, all and singular the 
'[ aforesaid tract of land, &c.," " and also, all leases 
of and concerning anypart or parts of the said 
' granted premises : and also, all the estate, right, 
title, interest, property, possession, claim and de- 
mand of ihem, the said John J. Van Rensselaer 
,' and Catharine his wife in the same" — yet, the 
{ grant is qualified by the habendum clause, — " To 
) have and to hold the said tract of land so described, 
' and so butted and bounded as above recited, &.C., 
, unto the said Daniel Penfield, his heirs and assigns, 
/ to the only proper use, and behoof of the said Dan- 
, iel Penfield his heirs and assigns forever, in as 
I full and ample a manner as the said John J. Van 
Rensselaer now hath and enjoyeth the same. And 
in as full and ample a manner, as the same hath 
heretofore been had and enjoyed by the said John 
J. Van Rensselaer, or lawfully might, if these pres- 
ents were not made, be had, used, occupied or en- 
joyed by him, his heirs or assigns." 
[ This latter clause, it is supposed, restricts, • and 
qualifies the general words in the grant, and con- 
fines the effect, and operation of the deed to the 
, coriveyance of such an estate as the grantor was 
seized and possessed of at the time ; and, as this 
was an estate for life with remainder over, it op- 
erated, and was intended to operate to convey only 
this estate. 

Were there nothing else in the case, there might 
be much difficulty in furnishing a satisfactory an- 
swer to this view ; although no one, we think, can 
read the deed without being sirongiy impressed 
with the conviction, that both parties supposed they 
were dealing with the fee, and that the bargain 
was made upon that understanding. 

But in order, fully to comprehend, and interpret 
this qualifying clause in the habendum, ii is mate- 
rial to look into the nature and condition of the title 
at the time, and the mode of enjoying the estate 
and, also, into the evidences of the title which were 



8 



LIBRftRY OF CONGRESS 



014 108 276 



turned over to the purchaser nt the execution of) grantor, or as might be possessed and enjoyed by 
the contract, all of wliich appears in the deed, and > him, his heirs and assigns, if these presents had 
articles of ugreemetu therein recited, and referred > not been made. 
to. ' Admit, that the clause refers to the title and es- 

As we have already saij in another branch of J taie possessed by the grantor as well as to ihe prem- 
the case, a part ot the tract had been previously ^ ises described, what title and estate ? Manifestly, 
conveyed in fee, and amongst others by the grantor ihae which is evidenced by the muniments of liile 
himself, and which is excepted from the grant. ^ before referred to, and particularly identified, and 
Much the larger part was at the time in the occu- ) described in the granting clause of ihe deed, a title 
pation of tenants under leases in fee, or for the I evidenced by leases in fee wiih rent reserved, made 
lives of the lessees with rents reserved, made , by John J. and his ancestors, and which passed to 
amongst others, also by .Toiin J., which leases were - the grantee as securing the rents and profits issuing 
transferred to Penfield as muniments of the.litle. ' out of and belonging to the estate conveyed. 

The articles of agreement provided for the trans- ^ These leases characterise the title to the tract 
fer of these leases ; and the deed itself in terms sold, and afford evidence that cannot be mistaken , 
embraces them in the granting clause. of the estate intended to be conveyed, and it waa 

In the articles of agreement, also Penfield is re- / the enjoyment of this estate and interest in the 
quired to covenant, that he will e.xecuie leases, ac- ^ premises in the manner and way in which the 
cording to the terms and conditions, upon which ' grantor had used, occupied, and enjoyed the same, 
they had been usually granted, of certain portions^ to which the habendum clause refers. This affords 
of the tract to several persons therein named: and a full explanation of its object and meaning, 
which leases, as we have seen, according to the ^ The reference to these leases and virtual incor- 
custom of granting, were to be made in fee, or for <, poration of them into the deed, and transfer as 
the lives of the lessees. The deed also, contains ■ muniments of the title, especially, those made by 
the recital of a mortgage in fee upon the estate John J. himself, together with the the mortgage in 
given by John J. the 11 August 1791, to Schuyler' fee to Schuyler which was to he. raised out of the 
for securing the payment of ^7,750, which Pen- ; purchase money, and the covenants required of 
field was to discharge out of the purchase { Penfield to grant similar K-ases to certain persons 
money. ' named, all clearly import on the face of the instru- 

Now, all these instruments affecting the title, i ment, an assertion, or affirmation on the part of 
and showing the tenure and conditions by and un- ' the grantor, that he was seized of a title that ena» 
der which the estate was held and enjoyed, are { bled him to make the leases, and mortgage and 
particularly referred to in the articles, and in the that would, also, enable Penfield to grant similar 
deed of conveyance, and are thus virtually incor- J leases, namely, leases in fee — and which brings the 
porated into the same ; and were so, for the pur- ( case directly within the jirinciples of law already 
pose of describing with greater precision, the na- '; staled, that estops him, and those coming in under 
lure, and condition of the title, and of the rights , him from denying that he was so seized, 
and interests of the grantor in the tract conveyed. The estoppel works upon the estate, and passes 
And, looking at them, and, at the right and title with it, and binds the title subsequently acquired by 
therein asserted, and affirmed, and upon the faith the death ofhis eldest son, the first born tenant ia 
ot which the purchase was made, and the deed tail. 

taken, we shall be enabled to comprehend, and We are satisfied, therefore, after the fullest con - 
give proper application to the words in jhe haben- > sideration of the case, that the decree of the court 
dum, namely, that the grantee, his heirs and as- j below is right, and should be affirmed, 
signs, shall hold in as full und ample a manner as ( [True Copy.] 

the same is possessed, occupied, and enjoyed by thi; ' Test. WM. THOS. CARROLL. 

C. S. C. U. S. 



